The Town of Delaware Planning Board is, pursuant to § 274-b of the New York State Town Law, authorized to approve, disapprove or approve with conditions the establishment of certain uses which shall, throughout this chapter, be identified as special uses. Special uses shall be those uses enumerated on the Schedule of District Regulations set forth in § 220-9[1] and any other applicable sections of this chapter. In addition, the following uses shall also be considered special uses:

Site plan review shall also be required for all special uses and such other uses as may be specified in this chapter. The Town of Delaware Planning Board is, pursuant to § 274-a of the New York State Town Law, authorized to review and approve, approve with modifications, or disapprove site plans as submitted to the Town in accord with this chapter.

Expansions or additions to uses classified as special uses in the PUD shall be governed by § 220-38B(1) of this chapter. In all other districts, the following shall be considered special uses:

The addition of an accessory structure shall not be considered a special use.

Conditions. Should the Planning Board approve a special use/site plan, the Planning Board may impose such reasonable conditions and restrictions as are directly related to and incidental to the special use/site plan. Upon the approval of any special use/site plan, any conditions imposed by the Planning Board must be met in connection with the issuance of permits by applicable enforcement agents or officers of the Town. The violation of any conditions of approval imposed on a special use/site plan shall be considered a violation of this chapter and shall be subject to the penalties therefor.

Expiration. Any special use and site plan approval granted by the Planning Board shall expire one year from the date such approval was granted if no building construction as approved has taken place or the use is not otherwise established as a functional and constructive activity prior to the expiration date. In the case of special uses and site plans approved prior to the effective date of this provision, the twelve-month expiration period shall begin on the effective date of this provision. Upon such one-year expiration, the said approval and any permit issued subsequent thereto shall be deemed null and void, and the developer shall be required to submit another application for the same. The Planning Board as the case may be, however, may grant an extension of the time limitations for good cause.

Justification. A waiver may be granted in the event any such requirement(s) is found not to be requisite in the interest of the public health, safety or general welfare or inappropriate to a particular special use/site plan application. However, the granting of a waiver shall not have the effect of making null and void the intent and purpose of this chapter.

Procedure. All requests for waivers shall be in writing, shall accompany and be a part of the special use/site plan application, and shall include:

Action. If the Planning Board denies the request, the applicant shall be notified, in writing, of the reasons for denial. If the Planning Board grants the request, the final special use/site plan shall include a note which identifies the waiver as granted. In any case, the Planning Board shall keep a written record of all actions on all requests for waivers.

Master Plan. The proposed use shall be in harmony with purposes, goals, objectives and standards of the Town of Delaware Master Plan and this chapter.

Location. The proposed use in the proposed location shall not result in either a detrimental overconcentration of a particular use within the Town or within the immediate area. The location chosen shall not be one demonstratively better suited or likely to be needed for uses which are permitted as a matter of right in the district. The Board shall, in making its decision, also evaluate the degree to which the proposed location may be particularly suitable or unsuitable for the proposed use in light of other potential sites in the immediate area, including those which might exist in adjacent communities.

Adverse effects. The proposed use at the proposed location shall not result in a substantial or undue adverse effect on adjacent property, the character of the neighborhood, traffic conditions, parking, public improvements, public sites or rights-of-way, or other matters affecting the public health, safety and general welfare, either as they now exist or as they may in the future be developed as a result of the implementation of the Master Plan and this chapter.

Facilities, services and improvements. The proposed use shall not impose an undue burden on any of the improvements, facilities, utilities and services of the Town, whether such services are provided by the Town or some other agency. The applicant shall be wholly responsible for providing such improvements, facilities, utilities or services as may be required to adequately serve the proposed use when the same are not available or adequate to service the proposed use in the proposed location. As part of the application and as a condition to any approval of the proposed special use/site plan, the applicant shall be responsible for establishing ability, willingness and binding commitment to provide such improvements, facilities, utilities and services in sufficient time and in a manner consistent with this and other regulations of the Town of Delaware. Any approval shall be so conditioned.

Additional standards and conditions of approval. No application for issuance of a special use/site plan permit shall be approved unless the Planning Board shall find that, in addition to complying with each of the standards enumerated above, any of the applicable standards of the law shall be met. In instances where the standards contained herein do not adequately protect the general health, safety and welfare of parties affected, the Board shall be obligated to impose such conditions in issuance of a permit. Conditions which might be imposed shall include (but not be limited to) provisions for additional parking, traffic control, submission of landscaping plans, setbacks, special measures addressing sales period activities, limiting the approval to the permittee and not the property, and other measures which can be effectuated to remove any potential adverse influence the use may have on adjoining uses. In reviewing a special use/site plan application and determining what conditions, if any, shall be attached should approval be granted, the Planning Board may consider:

Burden of proof. The burden of proof shall remain with the applicant to show compliance with all standards, and the burden shall never shift to the Town.

Sketch plan. A sketch plan conference may be held between the Planning Board and the applicant prior to the preparation and submission of a formal application. The intent of such a conference is to enable the applicant to inform the Planning Board of his proposal prior to the preparation of a detailed plan and for the Planning Board to review the basic site design concept, advise the applicant as to potential problems and concerns, and to generally determine the information to be required on the plan. In order to accomplish these objectives, the applicant should provide the following:

Applications. The Planning Board shall, for purposes of agenda preparation and project evaluation, be authorized, although not required, to reject any application not filed with the Building Inspector at least eight calendar days prior to the meeting at which action is requested. The Planning Board may, from time to time and by resolution, adjust this time period to meet its needs, provided that such period shall not be more than 20 calendar days.

Information required.

Referral to other agencies.

State Environmental Quality Review Act. The applicant shall submit all documentation necessary to demonstrate compliance with the New York State Environmental Quality Review Act, and the Planning Board shall take all required actions relative to the same prior to acting on the special use/site plan.

Agricultural data statement. The application shall include an agricultural data statement as required by § 283-a of the New York State Town Law in cases where the proposal involves property within an agricultural district containing a farming operation or involves property with boundaries within 500 feet of a farm operation located in an agricultural district. Agricultural districts are such districts designated in accord with the New York State Agriculture and Markets Law Article 25-AA, Agricultural Districts Law, as amended. If the proposal does not meet the criteria requiring an agricultural data statement, the applicant shall provide a certification to such effect. Agricultural data statements shall be submitted by the applicant on the form provided by the Planning Board and shall be processed in accord with § 283-a of the New York State Town Law.

Public hearing. The Planning Board shall conduct a public hearing on a special use/site plan application, and the said hearing shall be conducted within 62 days of the date that the application is received for review by the Planning Board.

Hearing notice.

Decision. The Planning Board shall render a decision on the special use/site plan within 62 days of the date of the hearing required in § 220-48G of this chapter. The decision of the Planning Board shall be immediately filed in the office of the Town Clerk, but in no case beyond five business days after the day such decision is rendered, and a copy thereof mailed to the applicant.[1]

Extension of time to render decision. The time within which the Planning Board must render its decision may be extended by mutual consent of the applicant and the Planning Board.

Form and content of guarantee. The form and term of the guarantee and schedule for completion of the improvements shall be approved by the Town Board after consultation with the Town Attorney and the Town Engineer.

Amount and term of guarantee. The sufficiency of the amount of such performance guarantee, based on an estimate prepared by the applicant's engineer, shall be determined by the Town Board after consultations with the Town Attorney, the Town Engineer and other appropriate parties. The amount shall be adequate to complete the required improvements plus expected cost increases over the term of the guarantee. The guarantee shall specify a completion date for the improvements, which shall not be more than three years from the date of special use/site plan approval.

Release of guarantee. When the improvements have been completed and approved by the Town Engineer or other qualified individual designated by the Town Board, the guarantee shall be released by the Town Board. The Town Board may approve partial releases of the guarantee for any portion of the improvements completed and approved in accord with this § 220-49.

Failure to complete improvements. In the event that any required improvements have not been installed as required by this chapter or within the terms of the guarantee, the Town Board may declare such guarantee to be in default and collect the sum remaining payable thereunder and install such improvements as are covered by the guarantee and which are commensurate with the extent of the development that has occurred, but not exceeding in cost the amount of such proceeds.

Inspections. Prior to initiating the installation of any improvements, the applicant shall meet with the Town Engineer to develop a schedule to assure that at the time each improvement is to be installed, and upon its completion, adequate inspections are conducted to confirm that all improvements are installed in accord with the approved plans.